SeattleLitigationJournal

The Impact Of Evidence Extrinsic To The Complaint In Determining An Insurer's Duty To Defend.

2010-02-15T20:01:00.000-08:00

Under Washington law, there are two exceptions to the rule that the duty to defend must be determined only from the complaint, and both the exceptions favor the insured. If coverage is not clear from the face of the complaint but may exist, the insurer must investigate the claim and give the insured the benefit of the doubt in determining whether the insurer has an obligation to defend. See Ins. Co. of N. Am. v. Ins. Co. of Pa., 17 Wn.App. 331, 334 (1977). Similarly, facts outside the complaint may be considered if “ ‘(a) the allegations are in conflict with facts known to or readily ascertainable by the insurer or (b) the allegations of the complaint are ambiguous or inadequate.’ ” Atl. Mut. Ins. Co. v. Roffe, Inc., 73 Wn.App. 858, 862 (1994) (quoting E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 908 (1986). An insurer has an obligation to give the rights of the insured the same consideration that it gives to its own monetary interests. See Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 388 (1986). Put simply, an insurer may not rely on facts extrinsic to the complaint in order to deny its duty to defend where the complaint can be interpreted as triggering the duty to defend. If in doubt, the insurer may file a declaratory action. See Truck Ins. Exchange v. Vanport Homes, Inc., 147 Wn.2d 751, 761 (2002).

Discovery Of Expert Information Over A Civil Rule 26 (b)(5)(B) Objection.

2009-09-03T13:34:00.000-07:00

There seems to be expert(s) everywhere who are willing to investigate, document and analyze almost any subject matter on short notice and later testify about their efforts, if only given the chance. Sometimes a party or parties to litigation may attempt to protect discovery of what expert(s) find at the scene of a loss even though the expert(s) were among the first to arrive and were able to collect important evidence before it dissipated. For example, it is not uncommon for a property owner to call their insurer upon discovery of a loss caused by landslide, fire, flood or earthquake (or some other event) and, in turn, the insurer dispatches an expert (or communicates with one already on site) to try and quickly discern and document the cause of the loss, as well as to determine whether any ongoing damages can be mitigated. However, sometimes the party who tasked the expert, near the inception or shortly after the occurrence of loss, does not want to employ the expert for purposes of litigation for tactical reasons. In Washington, Civil Rule 26 (b)(5)(B) may be used by a party to try and protect such expert information from discovery providing in pertinent part:

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to state such other information about the expert as may be discoverable under these rules. (ii) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

CR 26 (b)(5)(B) (emphasis added).

I have been involved in many case(s) in which an expert (e.g., a geologist; a fire investigator, etc.) may have the best and perhaps only information of what actually happened but my opponent has attempted to conceal or exclude it claiming the information was gathered by a consulting expert for the purposes of or in anticipation of litigation and that he or she has no intention of calling the expert to testify at trial. A typical response to such an objection is that the information sought could not and cannot be obtained on the critical issue of causation by any other means (i.e., a substantial need exists and "exceptional circumstances" are present). See CR 26 (b)(5)(B). For example, the party seeking the expert discovery over objection may argue that the expert is the kind of exceptional witness discussed in Tope v. King County, 189 Wn. 463 (1937); an expert who was able to observe the “premises at the time that the damage was wrought” and hence his testimony is more salient and objective by the very nature of the timing and the trained skill of his factual observations. The determination of whether the party seeking discovery has shown exceptional circumstances (i.e., that it is impracticable or impossible to obtain the information by other means) is vested in the sound discretion of the trial judge, who should look at the facts and circumstances of each case in arriving at an ultimate conclusion. See Heidebrink v. Moriwaki, 104 Wn.2d 392 (1985). See also, Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979); Roggelin v. Auto-Owners Ins., 2002 Ohio 7310 (Ohio App. 2002).

Another argument for compelling the discovery of the expert information over a Civil Rule 26 objection is that the information was not obtained or developed for or in anticipation of litigation but rather that the expert was dispatched for some other purpose and in a different context. In determining whether a particular document was prepared in "anticipation of litigation" within the meaning of Civil Rule 26 a court should consider the expectations of the specific parties involved in light of the rationale or general policy of the rules to allow broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries. Id. See generally, Johnson v. McCay, 77 Wn.App. 603, 609 (1995) In Re: Firestorm 1991, 129 Wn.2d 130 (1996); Escalante v. Sentry Ins., 49 Wn.App. 375 (1987). The party seeking disclosure of expert or work-product information over objection may also argue waiver where all or part of the discovery sought has previously been voluntarily disclosed. See Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002).

Disputes over the discovery and/or use of expert information are usually very contentious because their outcome may also determine the outcome of the entire lawsuit. The facts concerning how the expert was originally employed, for what purpose and whether the information should be shared also usually present difficult issues and balancing tests (e.g., broad discovery/fairness versus individual party rights) for the court to decide.

Law Tech: JD Supra

2009-05-20T08:36:00.000-07:00

The JD Supra website is a good place to find articles about specific legal topics, legal briefing and pleadings, and case law, as well as to learn a bit more about a lawyer's practice. A registered user of the site can upload documents by category or type and posted documents are searchable and can be found on the Web; creating a repository of legal documents with an internet cast. According to the website owners:

JD Supra lets you create an impressive online portfolio of your articles, newsletters, alerts, court filings, and presentations in minutes. Then, we help you get noticed (by prospective clients, colleagues and the media), so you can concentrate on doing what you do best – great work!

A single user or firm can post documents and create a profile for free but they can also pay a registration fee to be able to post contact information and to employ the site for more powerful marketing purposes. A "widget" for JD Supra can be found on the lower sidebar of this site.

Law Tech: More Reports About How Technology Will Change The Practice of Law.

2009-04-02T19:41:00.000-07:00

The news from recent legal conference(s) focusing upon new technology and featuring authors/speakers such as Richard Susskind is that technology will fundamentally change legal practice and the ways legal services are provided in the future. However, this information, including Mr. Susskind's message, somehow doesn't seem that new, but rather, for the most part, recycled. Yes, we have new forms of and uses for communication technology, but will these technologies necessarily ease conflict, promote economy (e.g., enable us to focus upon preventative law) or result in a lower profile for law as some are saying? Mr. Susskind is also unclear about precisely what legal services he is talking about. The widespread use of new technologies in response to changing social times will no doubt create some change in all areas of social and business life. But, in the process, a host of new issues and accompanying laws will be created that will require resolution by more old-fashioned means, such as litigation in our newly wired courts. I am reminded of Jeremy Rifkin's writings on social entropy and conclude this post with some quotes from his 1980 book Entropy, A New World View as food for thought:

"...every technology ever conceived by the genius of humankind is nothing more than a transformer of energy from nature's storehouse. In the process of that transformation, the energy flows through the human system where it is used for a fleeting moment to sustain life (and the artifacts of life) in a no equilibrium state. At the other end of the flow, the energy eventually ends up as dissipated waste, unavailable for future use.''

Rifkin continues: "The next time a technician, politician, or businessman tells you he or she can eliminate the secondary problems associated with a particular program, product, or process with better planning or better leadership or better design, think about the second law. It is true that the secondary disorders caused by a particular technology can be temporarily solved by the application of new technology. But the solution will inevitably result in even greater disorders.''

We need new technology to streamline and ease communication and the sharing of an increasing amount of information, as well as to allow existing institutions to accommodate more work. However, a view that the increased use of new technology will somehow reduce or materially alter the role of law or legal practice seems counterintuitive. It may well be that just the opposite occurs: that rapid adoption of technology in society and law practice will force everyone including practitioners of the law to step back, slow change, and return to or strive harder to maintain the tried, the more predictably stable and sustainable means and methods of maintaining order and resolving disputes in our world.

Construction Law: New Amendment to House Bill 1393.

2009-03-12T09:34:00.000-07:00

An amendment proposed by Representative Larry Springer of Kirkland to House Bill 1393 concerning "consumer protection in home construction" would create a seven-member Home Construction Board (Board) within the Office of Consumer Education for Home Construction (Office) to investigate and mediate construction defect claims.

Among other things, the proposal would allow the Board to use the services of neutral third parties to investigate, assess, and mediate claims creating an account to fund the Office from contractor fees charged by the Department of Labor and Industries. The proposed bill would also require the Office to examine issues involved in establishing a recovery fund to provide compensation to residential real property homeowners through a claim filing process and would provide that the common law implied warranty of habitability extends to subsequent purchasers who purchase the property within six years of construction. The proposed law would also limit damages recoverable under the common law implied warranty of habitability to the cost of repairs, or if those are clearly disproportionate to the loss in market value, limit damages to the loss in market value. Finally, the law proposes a requirement that every contract for the sale or construction of new residential real property provide for written express warranties to the purchaser or owner of the property complying with detailed requirements and including minimum levels of insurance coverage. The new amendment passed in the House by voice vote on March 11, 2009. The bill was referred to the Senate Labor, Commerce & Consumer Protection Committee on March 13, 2009.

Civil Procedure: Pre-Suit Filing Requirements Meant to Screen, Streamline and/or Prevent Litigation.

2009-02-23T08:36:00.000-08:00

Whenever a particular kind of litigation becomes abundant, cumbersome and/or very costly, state courts and legislatures often attempt to meet it with some sort of control or prophylactic measure. In Washington, construction defect litigation was met by RCW 64.50.020 (mandating notice of claim and procedures for negotiations pre-suit) and RCW Chapter 64.55 (prescribing inspection, arbitration and mediation procedures for multi-unit residential building litigation). Lawsuits against governmental entities have long required compliance with pre-suit notice and claim procedures under RCW 4.96.020. In California, laws attempt to prevent frivolous or vexatious litigation by requiring court approval of actions brought by person(s) deemed vexatious. In contrast, Washington law tends to address issues of possible 'vexatious litigation' only after a case is underway. These are just a few examples of laws that attempt to blunt or streamline litigation that is viewed as particularly burdensome to society.

Due to the ever increasing cost of litigation and the strain it can put on public services and private industry, we will likely see an increase in the number of laws that subject new litigation to pre-suit scrutiny (especially in this economy). It makes sense to track such legislation in other states, not only because similar measures could be adopted here in some form, but also because laws seeking to improve court procedure can provide good ideas for argumentation by analogy.

Recent examples include a newly proposed tort reform law in Oklahoma concerning suits against professionals. Oklahoma House Bill 1570 would require people filing civil lawsuits for professional negligence to attach an affidavit stating that they had consulted a qualified expert who had reviewed the facts and had provided a written opinion that the facts support the lawsuit’s allegations. The proposed bill provides for dismissal of the suit if the required affidavit is not provided. Those opposing the new law argue, among other things, that it would create an unconstitutional monetary barrier to courthouse access for litigants. It was estimated that a person filing a malpractice lawsuit (at least in Oklahoma) would have to spend on average between $500 and $5,000 for an expert opinion on a lawsuit’s merit.

As argued by opponents of the proposed Oklahoma law, pre-filing requirements can be so costly and/or confusing that they can undermine policies of fairness and free access. For example, time sensitive notice provisions can be very tricky and are often labeled as unfair "traps for the unwary" which attorneys, let alone pro se litigants, can easily violate. See e.g., Lakemont Ridge HOA v. Lakemont Ridge Ltd. P'ship, 125 Wn.App. 71 (2005); Christiansen v. Ellsworth, 162 Wn.2d 365 (2007).

If you have an example of a law or court rule (in place or just proposed) that creates what might be considered a particularly burdensome or tricky pre-suit hurdle for plaintiffs, please share it with a comment to this post including any thoughts you may have about whether the requirement(s) imposed operate fairly or present, in your opinion, any basis for constitutional or other challenge.

Law Tech: Ideas to Insure Innovation?

2009-02-10T08:26:00.000-08:00

The article "50 Ways to Foster a Sustainable Culture of Innovation" by Mitch Ditkoff contains some ideas for building environments helpful to innovation. It seems like people in all sectors of our society are encouraging creativity as the economy struggles even if their not sure what form(s) it should take. A speech delivered by new U.S. Treasury Secretary Timothy Geithner today emphasized that economic strength is derived from 'the doers, the makers of things' and 'the innovators who create and expand enterprises.' The popularity (or necessity) of the concepts of change and innovation has also hit the law and the legal profession. I notice that large firms especially are touting new departments and expertise in all things 'green'. The same firms are mostly downsizing while trying to figure out how to best serve and attract new business.

Another thing I find interesting is the number of technology and legal theorists predicting profound changes in how legal services will be provided in the near future because of, in large part, new technologies. I'm wondering whether these voices might be sourced in personal disenfranchisement from conventional systems or by a desire to market the technology. In general, however, I am somewhat skeptical about 'timing' as, among other things, I have been listening to debates about the use of cameras in the courtroom for over two decades now. Recently, however, federal judges have allowed journalists to cover court proceedings using Twitter, so, maybe new technology is gaining ground faster.

Nonetheless, there are some antithetical differences (purposes and goals) between the law and engineering/technology that often mar attempts to join them in theory or practice. It seems that law is designed in many respects to slow innovation in order that society can organize and stabilize itself in the midst of change. Also, as society becomes more complex (more information and more technology) more law inevitably follows. Finally, law practice is fundamentally a 'people' profession that often depends upon direct, face-to-face human interaction that communication technologies cannot replace. In any event, I think that Mr. Ditkoff's "50 Ways" article contains some good ideas for lawyers and anyone dealing with the legal profession in times of change and innovation (slow or fast, real or just theoretical).

Discovery Practice: Using Forms/Checklists at Depositions.

2009-01-26T09:53:00.000-08:00

Here is a good suggestion from Paul Luvera, the veteran plaintiffs' lawyer, on using a form to record significant events and impressions at depositions. Paul is right, so often lawyers get caught up with happenings at deposition(s) such as formulation of questioning, document review and side disputes that it can be difficult to focus on the testimony. The form and checklist offered by Mr. Luvera would aid concentration, prioritize tasks and help insure that the lawyer leaves the deposition with all essential information. I have used similar forms for specific kinds of cases and fact patterns which help ease deposition preparation, as well as the formulation of other discovery tasks.

Law Tech: Following Washington Legislation.

2009-01-24T11:41:00.000-08:00

If you would like to follow proposed new legislation in Washington State including proposed amendments to existing statutory law try the Washington Votes website. The site allows you to create a free account and build a "watch list" and then sends you an e-mail with updates concerning your choices.

Construction Safety: Checklist for Storing On-Site Construction Materials

2009-01-22T12:38:00.001-08:00

Here is a useful safety checklist for contractors storing on-site construction materials which was passed to me by Christopher Hill of Durrette Bradshaw PLC. Chris has included a link to additional construction safety checklists and articles on the same page.

Law Tech: New Website Proposes to Judge Washington Judges.

2009-01-22T09:55:00.000-08:00

This month, I have received several e-mail invitations from North Law Publishers, Inc. to help build a "database" for a website called "The Robing Room: Where Judges Are Judged". The declared purpose of the site is to provide ratings of judges presiding in the courts of Washington State. North Law Publishers describes itself as an "up-and-coming, New York City-based legal publisher. Formed and launched by attorneys, to produce and market products for attorneys, the company is attuned to the growing needs of the legal community, as well as the ever-evolving trends in legal practice."

North Law's effort reminds me of the Minneapolis Star Tribune when it used to run an annual column ranking local judges by comparing available statistics on the number of cases handled and resolved by each judge in a given year. I don't think that many of the trial court judges in Minnesota enjoyed the reporting or the method of evaluation. North Law Publishers, Inc., however, apparently seeks to base ratings of judicial performance solely upon opinions it obtains from practicing lawyers. In reply to my e-mail inquiry, Nicholas Kaiser of North Law informed me that the company began with the federal court system and to date has sites in about "half of the states". It will be interesting to see how North Law's site is received in Washington.

Motion and Trial Practice: Start with Basic Concepts and Definitions.

2009-01-16T09:57:00.000-08:00

The advent of the internet and online research tools has led many lawyers to look at the 'big picture' first when analyzing a legal issue for motion or trial practice. Although I might try an immediate Google or Lexis search depending on what I'm looking for, I more often take the advice of the judge I once worked for and reach for one of the most refined sources I know, namely, jury instructions. Jury instructions provide straightforward definitions for the legal concepts/actions you may have the burden of proving and which are likely at the core of your case.

For simple example, Washington Pattern Instruction (WPI) 301.01 provides that: "A contract is a legally enforceable promise or set of promises." WPI 301.02 defining "promise" provides that: "A promise is an expression that justifies the person to whom it is made in reasonably believing that a commitment has been made that something specific will happen or not happen in the future. A promise may be expressed orally, in writing, or by conduct." A link to these instructions along with all pattern instructions used in Washington Courts can be found under the heading "Washington Law Resources" on the side-bar of this blog. By starting with basic definitions a stronger foundation for any further or more far-reaching research is created.

Aside from the more traditional sources of online legal research such as Lexis and Westlaw, there are many other sources which provide sound definitional foundations for legal concepts that can help build clarity. One such source is the Stanford Encyclopedia of Philosophy. There you can find legal concepts broken down in straightforward definitional terms which, similar to jury instructions, try to explain concepts so that a lay person or jury member can understand them. For example, here is part of SEP's description of the connection between "tort law" and "insurance":

"Tort law establishes conditions under which victims can shift at least some of the costs they incur to others. All individuals realize that they may be subject to a judgment against them in tort and so many buy third party insurance to protect them from bearing the full costs of those judgments. In some jurisdictions purchasing third party insurance is mandatory. All individuals are likewise aware that they may be victims of another's actions and may not be able to secure a favorable judgment against their injurers — or they may not deem it worth the effort to pursue redress through the courts. So many of them buy first party insurance to guard against some of the costs they would otherwise have to shoulder completely."

I think that research or the development of argument is usually aided by starting with basic definitions, simplifying and breaking down concepts for juries (or anyone else who is listening). If jury instructions are used, an added benefit may occur when the definitions you have internalized and expressed are repeated by the trial judge. By first defining core legal terms and concepts, 'bigger picture' items (including how the facts of your case fit) become well-grounded along with the arguments you will have to frame and make.

Contract Law: Statutes That Make Contractual Relief Reciprocal.

2009-01-12T10:41:00.000-08:00

Prior posts have covered exceptions to the American Rule, the generality that parties pay their own attorney fees in litigation. An additional point concerns a potential nexus between contractual and statutory exceptions to the Rule. In Washington, when a contract contains a clause providing that only one party may recover attorney fees in the resolution of a dispute, such a remedy (no matter how one-sided it is written) can be made reciprocal or mutual by statute.

Revised Code of Washington 4.84.330 provides in pertinent part that: "In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. *** As used in this section "prevailing party" means the party in whose favor final judgment is rendered." RCW 4.84.330. The relief afforded by the statute cannot be waived. Id.

In California, a non-reciprocal contract clause awarding attorney fees is also made reciprocal as a matter of law. Civil Code 1717 provides in pertinent part that: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." CC 1717.

It should be noted, however, that in both jurisdictions any clause awarding attorney fees and costs may by its terms pertain to only certain aspects of a given contract and hence the clause may not be applied at all depending on the nature of the parties' dispute. See e.g. Dragt v. Dragt/DeTray, LLC, 139 Wn.App. 560 (2007); Paul v. Schoellkopf, 128 Cal.App. 4th 147 (2005); ABF Capital Corp. v. GMC Properties, Co., 126 Cal.App.4th 204 (2005).

The enforcement of equity and the promotion of access to the courts are the primary reasons given for the statutory conversion of a non-reciprocal clause awarding attorney fees to a remedy that is reciprocal or mutual in nature.

Attorney's Fees: Is the Billable Hour Fatally Flawed?

2009-01-07T08:02:00.000-08:00

I have worked with the billable hour compensation system in litigation for many years. The method has some flaws, one of which is the difficulty of the client (as well as the lawyer) to discern or appreciate value especially when the cost(s) of seemingly similar cases are compared. In the last few years there has been a lot of discussion about moving away from the billable hour altogether in favor of a flat, fixed or value billing methodology. These methods have been used more frequently in recent years but not typically in any uniform fashion. The notion is that the attorney and client would also communicate at various stages of the litigation to make compensation adjustments based upon the unique aspects and/or outcome(s) of a case. In the meantime, the billable hour remains dominant at least on the defense side, largely I think because alternative methods are not clearly articulated, massaged or even tried. Few wish to take the time or risk experimentation. The billable hour persists by momentum and clarity despite opinions of dissatisfaction which have echoed now for decades.

This month, lawyer Evan Chesler, the presiding partner of Cravath, Swaine & Moore, again questions whether the billable hour makes any sense at all in an interview in Forbes magazine. The opinions expressed by Mr. Chesler are not new but the sheer volume of response to the piece may signal that the time has arrived for some real change to occur. On the other hand, some saw Mr. Chesler's comments as a mere lure to clients in a weakened economy. At a minimum, however, it is important that everyone acknowledge compensation issues, the faults of the billable hour system and that we make a concerted effort to communicate about how compensation can be calculated during the life of a litigated case. In this manner, over time, some clearly defined and very workable alternative(s) to the billable hour system should rise to the top and receive widespread acknowledgment and use in litigation.

Construction Law: Proposed Homeowners' Bill of Rights.

2009-01-06T11:37:00.000-08:00

House Bill 1045 was filed last week proposing to codify a Homeowners' Bill of Rights in Washington amending and adding to RCW 64.50 et. seq. ("Construction defect claims"). The bill seeks to establish legal remedies for defective construction of new, as well as remodeled single family residences (including duplexes). The bill proclaims that consistent with "principles of equal treatment under the law" the new provisions would provide citizens statutory warranty rights similar to those purchasing condominiums under existing law (i.e., Washington Condominium Act, RCW 64.34). Among other things, the Act would alter the common law implied warranty of habitability to protect subsequent purchasers of single family homes who lack privity of contract with the contractor/builder and prohibit the waiver, disclaimer or limitation of the implied warranty by contractual agreement.

Law Tech: Another Opinion Concerning the Use of Social Media in a Business Environment.

2009-01-06T09:53:00.000-08:00

Despite the tenor of my last post, I don't believe that everyone is enthusiatic about Web 2.0 for business. There is the fear that the use of electronic social media (including e-mail) within a business environment can defeat mechanisms designed to protect confidentiality and business secrets, as well hurt productivity. These issues have been highlighted in e-discovery disputes and related litigation. However, the growth of different forms of electronic and social media including the increasing use of them by company employees has also compelled the conclusion by many that businesses (including those which provide legal services) must embrace social media (and incorporate them into business planning and operations) or they may simply be left behind. Mark Henshaw, a "global manager for information security strategy and planning at General Motors" addresses some of these issues in an article passed to me via a Twitter post from Kysen PR, the London based "...business development & marketing consultancy dedicated to professional services firms." There is obviously a tension building on several fronts between business interests that require secrecy/confidentiality and those that may depend upon new forms of social media optimized by open and quick means of communication. How these seemingly competing values are handled (if possible) by a given business including law firms and how they 'fall out' are obviously topics for further discussion.

Law Tech: The Importance of Web 2.0 Fundamentals.

2008-12-30T11:26:00.000-08:00

The term "Web 2.0" refers, in general, to the use of social media such as blogs, podcasts, video, and networks to enhance creativity, communications, secure information sharing, collaboration and functionality of the web. In regard to this post, the term is also used with specific reference to the use of such media by lawyers to communicate with other lawyers, their clients and the general public.These days it seems that most law firms/lawyers have some form of presence on the internet. There are some common themes to many of the firm sites which I'll describe as 'generic' including a photo of the firm's location usually a building or landscape portrait and a lot of short paragraphs filled with platitudes professing the specialties and expertise of the lawyers of the firm (including perhaps a reference to a Martindale-Hubbell rating and/or claim of "Super Lawyer") followed by contact information.

However, in the past several years, there has been a fairly steady move away from the 'generic' website with the advent of new internet applications which allow for more interactive forms of communication or Web 2.0. The use of blogs or 'lawblogs' by lawyers has grown significantly with companies such as LexBlog.com showing lawyers how they can supplement or literally replace their 'generic' sites with a blog combining the use of tools such as RSS ("Really Simple Syndication") feeds to share topical information and networking sites such as LinkedIn.com and Twitter.com. The growth of companies such as Google and its many application 'offshoots' such as Blogger.com also allow lawyers to create their own sites and link them to very powerful sets of software applications (e.g., Box.net).

The number of marketing professionals eager to show lawyers how to use the web increases every day. The old line marketing firms such as Martindale-Hubbell are now feeling pressure to revamp to stay with new competitors like Avvo.com and Legal OnRamp.com as traditional print-copy forms of lawyer advertising loose favor and potentially die out.

Today, it cannot be denied that if a lawyer does not know the fundamentals of Web 2.0 that his or her ability to access the law, as well as communicate with (current and/or prospective) clients will be diminished. If you are not convinced, just take a few hours and look at the variety of legal and law-related websites demonstrating how some lawyers are using internet-based applications to effectively gather, store and disseminate legal information including the marketing of their own abilities as lawyers and communicators.

Contract Law: Tort Theories Versus Economic Loss Rule.

2008-12-22T16:01:00.000-08:00

In Washington, a plaintiff attempting to recoup strictly economic losses typically requires a contractual relationship (privity) with the defendant in order to plead a good cause of action (unless there are facts establishing possible recovery of such damages under the Washington Consumer Protection Act). See Carlile v. Harbor Homes, Inc., No. 61419-3-I, Wn. Court of Appeals, Div.II, 10/20/08). As explained by the Washington Supreme Court in Alejandre v. Bull, 159 Wn.2d 674 (2007), the economic loss rule applies to hold parties to their contract remedies when a loss potentially implicates both tort and contract relief. The rule "prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from contract" because "tort law is not intended to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement." Id. at 681. [Note: In products liability actions, however, that allege product failure with resulting property damage and economic loss, two tests are applied to determine whether a loss is an economic loss in contract, which is not recoverable under the Washington Products Liability Act, or a sudden injury in tort, which may be recoverable. The two tests are the "sudden and dangerous test" and the "evaluative approach." See Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wn.2d 334, 351, 831 P.2d 724 (1992); Staton Hills Winery Co. v. Collons, 96 Wn. App. 590, 598 (1999); Nobl Park, LLC v. Shell Oil Co.,122 Wn.App. 838 (2004).]

Consequently, in Washington, an action alleging negligence or tort theories of liability will typically fail when a plaintiff seeks to recover solely economic losses. The action must be based in contract and if you did not contract with the defendant you will be barred from suing him in tort. The application of the economic loss rule in Washington creates some thorny problems especially in multi-party construction defect litigation where a developer/owner is confined to suing the general contractor with whom he has a contract and the general contractor, in turn, is confined to suing those subcontractor(s) with whom he has contracted. If a party to the litigation believes that another person should share in the liability equation, but does not have a contract with the person, he may be powerless to litigate the issue. This often makes for some disgruntled litigants and their counsel who seek to reasonably and efficiently spread the loss to all responsible persons in one case or forum. Contrast this with actions in tort under Washington's comparative fault system whereby a defendant may identify non-parties at fault under Rule of Civil Procedure 12 (i). By this procedure in tort litigation, a Washington jury must apportion percentages of fault between all parties and non-parties properly identified in the action. See Revised Code of Washington 4.22.070(1) (apportionment of fault) and 4.22.015 (definition of "fault"). In this manner, plaintiffs are prevented from controlling the litigation and targeting particular defendant(s) for alleged liability. See also G. Sisk, ARTICLE: Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform, 16 Puget Sound L.Rev. 1, 67 and authorities cited at Footnote 283 thereto.)

Also, contrast California, where the economic loss rule is applied only to limit tort recovery under theories of strict products liability to damages for physical harm to a person or to property other than the defective product itself. See Aas v. Superior Court, 24 Cal.4th 627 (2000). See also Jimenez v. Superior Court, 29 Cal.4th 473 (2002) (homeowner may recovery in tort for damage that a defective window causes to other parts of the home in which it has been installed). Unlike Washington, California also permits actions for negligent construction and implied equitable indemnity so that all persons may be brought into a single proceeding by just about any party (and regardless of whether a contract exists). In fact, a tort defendant in California retains the right to seek equitable indemnity from another tortfeasor even if the plaintiff's action against the cross-defendant is barred by the statute of limitations. See Valley Circle Estates v. VTN Consolidated, Inc., 33 Cal.3d 604 (1983). See also Code of Civil Procedure Section 428.10.

It seems that at least arguably some societal benefits may be achieved by the broad application of an economic loss rule. The rule seems to encourage independence by providing business-people with some control and predictability over business risks including terms that impact dispute resolution and litigation (through a process of formal contracting). But, I'm not sure that enforcement of the rule ultimately serves to support these ideals. In the real world, for example, construction contractors (especially lower-tier subcontractors) often do not have the ability (power or money) to enter into contracts which will ultimately serve their best interests. It may well be that our citizenry and court system (in terms of the efficient and effective administration of justice) would be best served by turning away from contract based theories of relief in favor of tort-based (negligence) theories of recovery in actions that are limited to the recovery of economic losses. What do you think?

Law Tech: Practice Fitness.

2008-12-09T10:32:00.000-08:00

I was in the administration office of a county courthouse waiting for a settlement conference and was standing there looking at an old photo collection of members of the local Bar Association. Another lawyer standing next to me was also viewing the photo montage and he said: "The only problem with this is that most of these lawyers are dead!" He then proceeded to identify each deceased lawyer (all men) as he pointed to each one. I then began calculating the relative age of the men in the photos given the year they were taken and realized that most of these guys could not have been that old when they died. It occurred to me that perhaps the practice of law had contributed to the early demise of these members of the Bar! Whether this is true or not, my observations at the courthouse that day often come to mind whenever I'm thinking about health, longevity and the positives of exercise as they relate to the practice of law.

So this post is about the form of exercise that I have gotten to know fairly recently and which has really raised my level of fitness. Excuse me if you must, as I have gotten a bit evangelistic about it. I have always bicycled outside and inside (stationary bike) on a fairly casual basis, so a few years ago I thought I'd try a 'spin' class at my local health club. At my first class, I was a bit dizzy after about a half-hour of spinning. However, I kept with it and now spin about an hour or two (interval training) four times a week starting at 5:30 a.m. The central equipment for me is a LeMond RevMaster and an attached Pilot which monitors time, cadence, mileage, calories burned and heart rate (you also need a chest strap for heart rate). This is the equipment at the health club that I go to but there are also other products either for purchase or club use. One of the other key things about spinning is that you can sync the cadence or rotation of the bike's pedals to the music that is playing (either from studio speakers or your Mp3 player) which provides strong motivation as you try to match tempo. One can stand or sit when spinning. I have never found music to be that helpful for running (either outside or on a treadmill) as each stride is associated with the pounding to the feet and joints and does not equate very well to the beat of music. Spinning, however, is a whole different story. If you are looking for great exercise (burning 500-1200 calories per hour) and have not tried it yet, I would highly recommend spinning to everyone and in particular, to you lawyers out there. It will clear your mind and provide the endurance you will need for your practice as well as walking those hills in Seattle.

Discovery: A Deponent Need Not Draw Under Civil Rule 30.

2008-12-01T21:55:00.000-08:00

In a recent deposition, opposing counsel was pressing my client to make a drawing by hand of the position of a horse lying in a roadway over which his client had allegedly driven her Ford Explorer. I did not want my client to draw because I thought that the result would be inaccurate in scale and would only prove confusing or misleading. I instructed my client not to draw contending that a deponent had no duty to provide a nonverbal response and was only required to respond orally under Civil Rule 30 ("Depositions Upon Oral Examination").

Thereafter, counsel moved the court to resume the deposition and to compel my client to draw. In opposition, I made the above-referenced arguments and cited a Florida case, Udkoff v. Hiett, 676 So.2d 522 (Fla.App. 1996). In Udkoff, the Florida Court of Appeals held that the trial court could not order the defendant to draw a diagram of an accident scene because the applicable rule of discovery (one very similar if not exactly the same as Washington's rule) did not impose a duty upon a party to draw at a deposition. The Udkoff court stated that: “Although a witness may choose to draw something to help explain his or her testimony, a trial court is without any authority to compel the deponent to create a drawing.”

The court in my case ruled in a similar fashion denying the motion to compel citing Civil Rule 30, as well as the Udkoff case. The judge in so ruling pondered out loud whether a witness at trial might be required to draw noting that drawing by trial witnesses was a common occurrence in his courtroom. In cases where liability can hinge upon a precise location of objects or other facts, counsel should give some thought to whether a drawing might be helpful or not. Cf. Emerson Electric Co. v. Superior Court, 16 Cal.4th 1101 (1997) [deponent required to provide nonverbal as well as verbal 'answers' at videotaped deposition under former Cal.Civ.Pro.Code 2025(o)]. See also, State v. Koontz, 145 Wn.2d 650 (2002) (re: replay of videotaped testimony during trial).

Evidence: What Does An E-Mail Disclaimer Really Do for You?

2008-11-26T11:24:00.000-08:00

I always read e-mail disclaimers declaring that the mail is protected from unauthorized use by "attorney-client privilege" and as "work product", but I always wonder a bit whether the blanket use of such e-mail disclaimers makes any real sense. If you haven't looked at it yet, new Federal Rule of Evidence 502 provides some protection against waiver of attorney-client privilege in federal proceedings for the inadvertent disclosure of privileged materials and addresses burdens imposed by relatively new technologies such as e-mail. A recent decision of the Washington Court of Appeals in Sitterson v. Evergreen School Dist.No. 114, (Div. II, 11/25/08) discusses a need to apply a 'balanced' approach in analyzing claims of waiver of the attorney-client privilege when privileged documents are allegedly disclosed in an inadvertent manner adopting a test applied in Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993). The Alldread test looks at five factors including (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of disclosure, and (5) the overriding issue of fairness. Id. at 1433. According to the Washington Court of Appeals in Sitterson the Alldread 'balanced' approach is flexible, taking into account the principles underlying the attorney-client privilege and the realities of modern litigation. The Court in Sitterson reasoned that the Alldread test would continue to provide incentives for attorneys to protect confidential communications with their clients, but that it also recognizes that truly unpreventable and inadvertent disclosures can occur at great cost to the client's interests especially given modern forms of communication and document handling.

But getting back to our original subject, there is the position that the constant and non-purposeful use of e-mail disclaimers may actually work against the attorneys that employ them. For example, the following case cite and analysis from Eric Cooperstein of Lawyerist.com:

"In a recent case, Scott v. Beth Israel Medical Center, Inc., 847 N.Y. 2d 436, 444 (2007), the court refused to find that a series of e-mails were privileged just because they contained a disclaimer that was found in every e-mail sent by the plaintiff.

Lawyers are also training the world to ignore disclaimers and privilege warnings, which is precisely what we don't want people to do. Appropriately used, disclaimers may allow lawyers to rescue misdirected e-mails that were sent to other parties and preserve the client's confidentiality, particularly in close cases in which the confidential or privileged nature of the e-mail is not clearly apparent on the face of the e-mail. Those disclaimers should be sparingly used, appear at the beginning rather that the end of the e-mail, and only state that information in the e-mail is confidential or privileged when it truly is. That way, unintended recipients might really sit up and take notice when they see "confidential and privileged" declared in an e-mail."

Mr. Cooperstein's argument against the automatic attachment of e-mail disclaimers seems to make some sense. Is this much ado about nothing or should attorneys selectively include or omit disclaimer(s) in e-mail giving consideration to the content, purpose and positioning of them in light of the subject of the message and document(s) transmitted? What do you think?

International Law: The Somali Pirates, Blackwater and a Seattle Connection?

2008-11-23T07:52:00.000-08:00

This is a bit 'off topic', but worth a look given world events which increasingly involve us here at home. The 'pirates' of Somali sure have gotten a lot of press lately. An apparently fictitious Bloomberg news story has the pirates acquiring Citigroup while the pirates' reputed spokesman maintains that the 'pirates' merely guard their coast for food. Whatever the case, it appears the so-called pirates are battling for legitimacy as governments of the world ponder the pirates' status under international law while trying to protect established shipping routes. In the meantime, Blackwater Worldwide, which describes itself as an American company that provides innovative private sector solutions to 'U.S. Government' and 'non-U.S. Government' clients is reportedly gearing up. Blackwater already has the 830-ton 'MacArthur' built about forty years ago for the National Oceanic and Atmospheric Administration as a research vessel. Blackwater reportedly had the MacArthur repaired and upgraded in a Seattle shipyard to its present value of at least $15 million and is now offering its services in the Gulf of Aden.

Insurance Law: Covenant Judgments.

2008-11-20T17:45:00.000-08:00

In California, when an insurer provides a defense to its insured, the insured has no right to interfere with the insurer's control of the defense (even if the insurer has reserved rights) and a stipulated judgment between the insured and the injured claimant, without the consent of the insurer, is ineffective to impose liability upon the insurer. See Safeco Ins. Co. of Am. v. Superior Court, 71 Cal.App. 4th 782, 84 Cal.Rptr. 2d 43 (1999); Jamestown Builders v. General Star Indem.Co., 77 Cal.App.4th 341, 91 Cal.Rptr.2d 514 (1999). Insurers, in this regard, are typically protected by 'no-action' or 'no-voluntary payments' clause(s) in the insurance policy, as well as a predominating judicial notion or concern that such settlements would foster collusion and fraud between the settling parties and work to the unfair advantage of the insurer. If the insurer mounts a deficient defense or fails to accept a reasonable settlement offer, however; it may be held liable for any judgment in excess of the insured's coverage, but such damages arise only after the entry of an adverse judgment against the insured. Safeco Ins. Co. of Am. v. Superior Court, 71 Cal.App. 4th 782, 788-89, 84 Cal.Rptr. 2d 43 (1999). A mere dissatisfaction over the quality of the insurer's management of the case or a theoretical exposure of an insured's personal assets would not entitle the insured to settle the action on its own and without the insurer's consent. In fact, in California it appears to be a bright-line rule that the insurer must have completely abdicated its duty to defend before it will be held liable for a stipulated settlement.

In other states including Washington, however, the law has taken a decidedly more favorable bent toward exposing insurance when a claimant enters into a stiplulated or covenant judgment with a defendant-insured. Recently, the Washington Supreme Court decided Mutual of Enumclaw Ins. Co. v. T & G Construction, Inc., et.al., concerning an underlying condominium construction defect suit and related coverage litigation. The Court was asked "to balance the interests of an insured defendant in reaching a reasonable settlement with a claimant against the insurer's (Mutual of Enumclaw Insurance Company or "MOE") interest in fully litigating its insured's legal obligation to that claimant.

In the underlying construction defect litigation in Snohomish County Superior Court, the Association, with MOE's knowledge but without its consent or participation, entered into a settlement with T & G, a subcontractor-defendant who MOE insured and who installed board and batten siding on the condominiums. T & G stipulated to a judgment of $3.3 million (for alleged costs to repair defects in the siding) with the Association promising not to execute the judgment against T & G. T & G, in turn, assigned its rights under the insurance policy to the Association so that the Association could try to make MOE satisfy the judgment. The trial court blessed the parties' settlement (in an adjusted amount of $3 million) as 'reasonable' and over the objections of MOE who appeared and participated in a reasonableness hearing.

Meanwhile, MOE initiated a declaratory judgment action in King County Superior Court arguing that its insured, T & G, was not liable for the underlying covenant judgment on the grounds that a statute of limitations had run on the underlying action against T & G, that the insured's damages were outside the coverage provisions of the policy issued to T & G, that T & G had breached its obligation to cooperate, and that several policy exceptions applied. The King County Superior Court by Judge Julie Spector granted summary judgment against MOE on all of these issues.

The Washington Supreme Court got the case upon the Association's appeal from the Washington Court of Appeal's decision that absent any determination of bad faith, that MOE should have been allowed to litigate to finality whether a statute of limitations defense had run on the underlying defect claims against its insured (T & G) and, if the trial court concluded that the statute of limitations had not run, whether Mutual of Enumclaw had been prejudiced by its insured's failure to cooperate at the end of the liability case. See Mut. of Encumclaw Ins. Co. v. T & G Constr., Inc., 143 Wn.App. 6667 (2007). Simultaneously, the Court of Appeals upheld the settlement and reasonableness determination in the liability suit. See Villas at Harbour Pointe Owners Ass'n v. Mutual of Enumclaw Ins. Co. v. T & G Constr., Inc., 137 Wn.App. 751 rev.den. 163 Wn.2d 1020 (2008).

The Washington Supreme Court in T & G accepted review of only the coverage dispute and reversed the Court of Appeal's rulings. The Court held that when the insurer has an opportunity to be involved in a settlement fixing its insured's liability, and that settlement is judged reasonable by a judge, then it is appropriate to use the fact of the settlement to establish liability and the amount of the settlement as the presumptive damage award for purposes of coverage. In so holding, the Court stated that it would be inequitable to allow an insurer to relitigate questions that were resolved in the underlying liability action and held that an insurer is not entitled to litigate factual questions that were resolved in the liability case by judgment or arm's length settlement. In reaching these holdings the Court noted that courts in other states have made similar determinations citing United Servs. Auto Ass'n v. Morris, 741 P.2d 246 (Az. 1987) (rejecting claim that insurer could raise a liability defense in a coverage case); Patrons Oxford Ins. Co. v. Harris, 905 A.2d 819 (Me. 2006); and Miller v. Shugart, 316 N.W.2d 729 (Mn. 1982). See also, Weber v. Indem. Ins. Co. of N. Am. 345 F. Supp. 2d 1139 (Dist. of Hawaii 2004).

The Court in T & G hastened to add, however, that the "presumptive damages" are not necessarily the "covered damages" under the subject policy and remanded several issues of coverage to the trial court. Notably, "property damage" issues under the "impaired property" and "your work" exclusions in the policy were at issue. The Court stated that the cost of removal and reinstallation of the siding was within the scope of 'property damage' stating that 'property damage' is a term of art that does not necessarily mean tangible damage to tangible property and can include consequential damages stemming from the repair process. See Dewitt Constr., Inc. v. Charter Oak Fire Ins. Co., 307 F.3d 1127 (9th Cir. 2002); Yakima Cement Prods. Co. v. Great Am. Ins. Co., 93 Wn.2d 210 (1980); Gen.Ins. Co. of Am. v. Gauger, 13 Wn.App. 928 (1975). But, the Court found that it could not tell from the record what facts or underlying determinations the coverage court had employed, if any, on its own determinations concerning these policy exclusions and consequently remanded for further proceedings on the issues concerning any applicability of the exclusions.

The Washington Supreme Court's decision in the T & G case caps a string of cases that have empowered insureds and their assignees by holding that convenent judgment(s) are enforceable against insurers in a variety of ways so long as they are determined reasonable. See Besel v. Viking Ins. Co., 146 Wn.2d 730 (2002) (the amount of a covenant judgment is the presumptive measure of an insured's harm caused by an insurer's tortious bad faith if the covenant judgment is reasonable under the Chaussee criteria) and Chaussee v. Maryland Casualty Co., 60 Wn.App. 504 (1991) (insurer that defended under reservation of rights but misrepresented policy limits may be liable for stipulated judgment in excess of limits, but claimant bears burden of showing reasonableness of the settlement). See also Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708 (1983); Werlinger v. Warner, 126 Wn.App. 342 (2005); Truck Ins. Exch. v. Vanport Homes, 147 Wn.2d 751 (2002). The court, in this situation, essentially functions as both judge and jury on critical issues of liability and damages in determining reasonableness and this determination, in turn, can greatly impact the potential availability of insurance to satisfy the covenant judgment.

Law Tech: Dictation of Legal Documents.

2008-11-20T12:22:00.000-08:00

It seems like fewer lawyers are dictating their legal documents these days. With the widespread use of desktop computers, extra steps in putting type to paper were eliminated and a lot of lawyers and firms abandoned dictation or never learned how. For those who want to return to dictation or give it a try for the first time, there are some great products on the market that allow you to quickly come up to speed.

The first item you need is voice recognition software and most professionals that I know use Dragon NaturalSpeaking 10 (the current version). Second, you need either a microphone (headset) or a hand-held dictation device, or both, to transfer your voice to the computer software. I recommend getting both. If you are sitting at your desk or laptop, the microphone allows you to see your words appear directly on the computer screen as you speak. A hand-held device that makes a clear recording and works seamlessly with your software provides you with the mobility of dictating anywhere. There is an extra step of downloading your voice file from the hand-held device to the computer and then allowing the voice recognition software to translate it, however the process is quick and easy. I have researched and used various products for dictation and I would recommend looking at Andrea Electronics USB headsets for a microphone and for mobile dictation one of the Phillips Digital Pocket Memo 9600 series devices.

Tort Law: Duty of Business and Property Owners to Protect Others From Criminal Acts.

2008-11-20T06:23:00.000-08:00

I recently defended a Seattle hotel against claims that the hotel had breached a duty to protect a guest from being criminally assaulted by another guest. I had not really looked at issues of this kind since the late 1980s when I defended a bank whose employee was hurt by a pipe bomb placed in the bank's high-crime area parking facility. A lot has changed since then including a multitude of new cases in a myriad of factual contexts (e.g., crimes in bars/restaurants; schools; workplaces; outdoor concert venues; nursing homes; child care centers; bus depots to name a few.) This post concerns primarily Washington law on the subject.

The general rule is that one has no duty to protect another from a third-party's criminal conduct. However, when a 'special relationship' exists between the defendant and either the third-party or the foreseeable victim of the third party's conduct, a duty can arise. One such relationship is between a business owner and his or her clients/customers (the business invitee). In Washington, a business owner must take reasonable steps to prevent imminent criminal harm and reasonably foreseeable criminal conduct by third persons. However, criminal conduct is rarely foreseeable. See Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192 (1997). When there is no evidence that the business owner knew of the dangerous propensities of the individual responsible for the crime and there is no history of such crimes on the premises, criminal conduct may be unforeseeable as a matter of law. See Wilbert v. Metro. Park Dist. of Tacoma, 90 Wn.App. 304 (1998).

Typically, claims of this kind arise in the context of a celebration or gathering of some sort (large or small) where alcohol and people mix in an ultimately bad way. Plaintiffs often try to link via expert testimony what a defendant knew or should have known about the effects of alcohol upon behavior and that it caused the crime in question. However, these efforts are often unsuccessful. See e.g., Wilbert, supra; Margaret W. v. Kelley R., 139 Cal.App. 4th 141 (2006); Christen v. Lee, 113 Wn.2d 479 (1989). Many of the cases emphasize the point that foreseeability of criminal conduct is not measured by what the defendant could arguably conceive of or predict, but rather what the defendant actually knew.

Testifying experts citing studies linking drug or alcohol use to misconduct have difficulty establishing that a defendant knew about any predictors of behavior let alone that drug or alcohol use would make a crime more likely in any particular situation. Plaintiffs also often try to meet their burden of proof on the issue of foreseeability by pointing to evidence of lesser forms of misconduct that immediately preceded the injury causing event. For example, loud arguing and shoving preceding a fatal shooting or stabbing. However, in Washington, several cases have held that evidence of antisocial, unruly, or even hostile behavior is generally insufficient to establish that a defendant with a supervisory duty should reasonably have anticipated a more serious misdeed. See Wilbert supra; J.N. v. Bellingham Sch.Dist.No. 501, 74 Wn.App. 49 (1994); Raider v. Greyhound Lines, 94 Wn.App. 816 rev.den. 138 Wn.2d 1011 (1999).

Consequently, Washington case law presents some fairly high hurdles for plaintiffs in these cases. However, arguably in the favor of some plaintiffs, it also seems that 'duty' or the standard of care may shift higher depending upon the age and/or vulnerability of the victim. For instance, a suspected gang member who gets shot during a county sponsored street dance appears to receive less protection under the law than say a child or an elderly resident assaulted at school or in a nursing home. See Wilbert, supra and McLeod v. Grant County Sch.Dist. No.128, 42 Wn.2d 316 (1953); Niece v. Elmview Group Home, 131 Wn.2d 39 (1997). In comparison, courts in California have distinguished degrees of duty and foreseeability depending on situational factors. Where there are strong policy reasons for preventing harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. See Delgado v. Trax Bar & Grill, 36 Cal.4th 224 (2005). Duty in such circumstances is determined by a balancing of the foreseeability of the criminal acts against the burdensomeness, vagueness and efficacy of the proposed security measures. Id.

It is also important to note that plaintiffs prosecuting these kinds of cases do not typically include the criminal assailant as a party-defendant. In Washington, it is unlikely that a defendant naming the assailant as a 'non-party at fault' pursuant to Civil Rule 12 (i) would be able to reduce its percentage of fault in any comparative fault equation given an assailant's intentional wrongdoing and the statutory definition of 'fault'. See RCW 4.22.070 ("Percentage of fault -- Determination -- Exception -- Limitations") and 4.22.015 ('"Fault" defined.'). See also Welch v. Southland Corp., 134 Wn.2d 629 (1998).